14 CFR Part 382 Nondiscrimination on the Basis of Disability in Air Travel (Air Carrier Access Act): Preamble and Section-by-Section Analysis (with amendments issued through July 2010)

382.19 May carriers refuse to provide transportation on the basis of disability? This section continues, and extends to foreign carriers, the key nondiscrimination requirement of the ACAA and the existing Part 382. With narrow exceptions, a carrier is prohibited from denying transportation to a passenger on the basis of disability. Carriers retain their authority, under 49 U.S.C. 44902 and 14 CFR 121.533, to deny transportation to any passenger, disabled or not, on the basis of safety or whose carriage would violate FAA or TSA requirements.

If the carrier’s reason for excluding a passenger on the basis of safety is that the individual’s disability creates a safety problem, the carrier’s decision must be based on a “direct threat” analysis. This concept, grounded in the Americans with Disabilities Act, calls on carriers to make an individualized assessment (e.g., as opposed to a generalization or stereotype about what a person with a given disability can or can’t do) of the safety threat the person is thought to pose. In doing so, the carrier must take into account the nature, duration and severity of the risk; the probability that the potential harm will actually occur; and whether reasonable mitigating measures can reduce the risk to the point where the individual no longer poses a direct threat. In using its authority to make a direct threat determination and exclude a passenger, a carrier must not act inconsistently with other provisions of Part 382. Direct threat determinations must not be used as a sort of de facto exception to specific requirements of this Part (e.g., the prohibition on number limits).

Exclusion of a passenger because his disability-related appearance or involuntary behavior may offend, annoy, or inconvenience other persons – as distinct from creating a direct threat to safety – is an important part of this nondiscrimination mandate. The rationale for this requirement was stated in the preamble to the 1990 ACAA rule, and it remains valid (see 55 FR 8027; March 6, 1990).